Commentary on Canadian Labour and Employment Law Issues

April 13, 2015

At times, during the course of a hearing, the penny will drop and the writing on the wall will become clear - you cannot win. Something happens. Perhaps, a witness implodes or the adjudicator gives the impression that he or she isn’t buying what your selling.

So what do you do? You proceed and hope that brilliant advocacy (or a miracle) sways the likely result. In practice, while this can happen, it is tough to change the course of the ship once the rocks are in sight. “The facts are what they are” as I was told at the beginning of my career.

The other course is to withdraw the grievance.

But that is not without its challenge - is the withdrawal with prejudice or without prejudice? Once the hearing begins, is the arbitrator required to dismiss the grievance, rather than permit its withdrawal?

The issue was considered in Albright Gardens and ONA (2015), 122 C.L.A.S. 74 (McNamee). After the employer closed its case, and the union advised that it was not calling evidence, the arbitrator adjourned the hearing to allow the parties to make written submissions. In lieu of written submissions, the union wrote to the arbitrator advising, in part:

I write to inform you and your client that ONA is withdrawing the above-noted Grievance without prejudice or precedent to either party's legal position on the interpretation of the collective agreement. I note that ONA has provided an estoppel notice to the Employer with respect to ONA's intention to rely on the strict wording of Article 12.02. I further note that ONA may be addressing this issue in the upcoming round of bargaining between the Parties.

Not surprising the employer took the position that “it is too late for the union to withdraw the grievance, and that it should be dismissed. It submitted that the union ought not to be able to listen to the evidence in an arbitration, and then seek to withdraw without prejudice, retaining the right to re-submit the matter to arbitration.”

This seems like a sensible argument (to me at least).

The arbitrator disagreed with the employer and concluded:

As I understand the thrust of arbitral jurisprudence with respect to this issue, I should not take it upon myself to dismiss a grievance when a party wishes to withdraw it from arbitration. Instead, I should leave it to any subsequent arbitrator or arbitration board to determine how any grievance, including the current grievance, which is placed before him, her or it should be disposed of. I concur with the results in those cases, and accordingly these proceeding are terminated without prejudice to any position that either of these parties might take in a subsequent arbitration.

There are many cases that deal with this issue. On the one hand I understand the reluctance to foreclose future, possibly unanticipated proceedings. On the other hand, it would be nice, from a labour relations and cost perspective, to have some direction on the impact of the withdrawal on future proceedings.

The employer in the Albright case argued in the alternative, that the arbitrator:

... should issue a decision with respect to the withdrawal request, and provide some context as to what the matter was about and when the grievance was withdrawn. It says that a decision outlining the grievance, the facts and the stage in the process when ONA decided to withdraw would go a long way to prevent duplicitous litigation.

The employee was charged with driving under the influence and ultimately convicted of the offence.

As it turned out, the employee was an alcoholic. Prior to his conviction, he had sought treatment and concluded the program. The discharge report indicated, among other things, that he succesfully completed the program and “openly addressed his history of substance abuse and the impact it had on his life and that of others, as well as his “relationship and boundaries issues”.” The report further noted that he had agreed to an after-care plan and a variety of clinical recommendations.

As in all discipline cases where no specific penalty is provided in the collective agreement, the adjudicator follows a two step process:

whether or not the company had cause to discharge (or discipline) the grievor; and

if it did, the next issue is whether or not the adjudicator should substitute the discharge (discipline) with a less severe penalty.

The second issue involves an assessment of all of the surrounding circumstances and a variety of well established mitigating factors or unique or extenuating circumstances.

In this case, Vice-Chair Kelly held that the employer had just cause to discharge the grievor from his employment. He reviewed a number of decisions on point. This being said, Vice-Chair Kelly concluded as follows:

In my view, having regard to what the grievor did on August 9, 2012, the company had cause to discharge him from employment. It was extremely serious, and potentially lethal misconduct. However, when all things are considered, including that the grievor was an alcoholic at the time of the incident, I consider it just and reasonable to substitute the discharge with a lesser penalty.

He considered, among other things, the following mitigating factors:

a clean disciplinary record

a “fairly substantial” amount of service

the grievor appeared to recognize the seriousness of his misconduct in driving impaired and he admitted an addiction

he sincerely apologized

he immediately took steps to deal with his adiction (though, according to the Vice-Chair, he had not done enough yet)

the evidence was that he has remained sober

In terms of aggravating factors:

The grievor put his safety and the safety of the travelling public at grave risk. He exposed the company to potentially massive liability and harmful publicity. Also, albeit on a much smaller scale, the company lost the use of the impounded vehicle for a period of time.

In the end, the Board found that the mitigating factors outweighed the aggravating factors. The Board reinstated the grievor on conditions including a specific penalty in the event of breach.

The Moral of the Story

To state the obvious, these are complicated cases that require a deft balancing of important corporate and individual interests. In the end, the Board, in this case, found that the personal mitigating circumstances outweighed the extremely serious corporate concerns. The Board believed, obviously, that this employee deserved a second chance and, clearly, this will not be so in every case.

That being said, the case emphasizes that discharge is not automatic and that even where extremely serious misconduct is proven a consideration of all surrounding circumstances must be considered. These are tough cases, and the result will often come down to intangibles that are unpredictable at the outset, including the demeneour of the grievor and the discretion of the particular adjudicator. These are not thinks that are known at the time of termination but clearly, as in this case, determined the outcome.

February 23, 2015

A labour arbitrator considered when the presence of mitigating factors (including, what the arbitrator described as “a painful, if not abusive, relationship with her former common-law partner” and drug use) were sufficient to reinstate an employee terminated for admitted theft. The case is Canada Post Corp. (2014), 121 C.L.A.S. 189 (M. Picher).

The Association argued that these factors, offered by way of explanation rather than excuse, should result in the reinstatement of the griever to her employment (notwithstanding the seriousness of the offence she committed). The Arbitrator said that:

The difficulty I have with the fundamental position asserted by the Association is to accept that her conscious and repeated acts of theft can be understood or excused on the basis of her admitted personal stresses and ongoing drug use.

There is nothing in the evidence before me to suggest, must less confirm, that the grievor was bereft of judgement or of the ability to make decisions, by reason of her involvement with drugs.

He then goes on to make the following damning comment:

What emerges, unfortunately, is a picture of the grievor as person who can be selective, if not deceptive, in her account of events and her overall truthfulness with respect to disclosing the full facts. Having regard to the totality of her evidence in these proceedings, and to her dealings with others in the past as reflected in the testimony before me, I am left with some difficulty as to the grievor's overall credibility. I say that with some regret, as I do not doubt that she has suffered greatly in her personal life and may well, as she asserts, have turned the page and may now hopefully be moving towards being a better and more responsible person in relation to her children, to others and to herself.

The arbitrator concluded that, in the circumstances, to return to grievor with the employer would “constitute unfairness towards the Corporation both as regards the presence of the grievor in the workplace and the undermining of the deterrent effect which her discipline should have for other employees in the bargaining unit.”. Accordingly, the“actions did irrevocably break the bond of trust essential to her ongoing employment”.

The Moral of this Story

In Ontario, save where the parties have agreed to a specific penalty in their collective agreement, the arbitrator has jurisdiction to substitute a penalty for the one imposed by the employer. Among the factors that will be considered are those identified by Arbitrator Harry Arthurs in Canadian Broadcasting Corporation and CUPE, (1979), 23 L.A.C. (2d) 227 (Arthurs):

bona fide confusion or mistake by the grievor as to whether he was entitled to do the act complained of;

the grievor’s inability , due to drunkenness or emotional problems, to appreciate the wrongfulness of his act;

the impulsive or non-premeditated nature of the act;

the relatively trivial nature of the harm done;

the frank acknowledgement of his misconduct by the grievor;

the existence of a sympathetic, personal motive for dishonesty, such as family need, rather than hardened criminality;

the past record of the grievor;

the grievor’s future prospects for likely good behaviour, and

the economic impact of discharge in view of the grievor’s age, personal circumstances, etc.

But compassion cannot, according to Goodyear Canada Inc. (2005), CanLII 57507 (ON LA) and Ontario Power Generation Inc. (2000) 125 L.A.C. (4th) 286 (Swan) “trump either the seriousness of the Grievor’s two culminating offences nor their effect on the employment relationship.”

In any event, this case supports the proposition that termination is not an automatic penalty, even in a case of admitted theft, and consideration of all surrounding circumstances will be required in arriving at the appropriate penalty.

9.11(a) An employee who properly reports for work at the beginning of his regular shift, unless he has been notified at least two hours before the commencement of his shift not to report, will receive at least four (4) hours work at his straight time base hourly rate or shall be paid for the four hours at his straight time base hourly rate, except in cases of labour disputes, machinery, equipment, power or other utility break downs, fire, flood or any other causes, without limitation, beyond the control of the company. [Emphasis added]

The employer cancelled the afternoon shift and did not provide at least two (2) hours notice prior to the commencement of the shift. The only issue was whether or not the Company was exempt from having to pay employees reporting pay because the shift was cancelled for “other causes, without limitation, beyond the control of the company”.

In this case, the shift was cancelled due to a snowstorm.

The arbitrator reported that:

There is no dispute that weather forecasts indicated a significant amount of snow accumulation (15-20 or more centimetres) in the Hamilton region. The forecasts advised that snow would fall, heavily at times, beginning late during the evening of February 4, 2014, and into the morning on February 5, 2014. Reports from Environment Canada confirm that snow was falling on February 5, 2014, from midnight until approximately 7:00 p.m. Environment Canada reports also confirm that the heaviest snow accumulation and blowing snow occurred between the period of noon until 2:00 p.m. on February 5, 2014.

The employer determined, based on a variety of considerations, that it would cancel the shift.

The union argued that the employer panicked in doing so and did not act reasonably. Accordingly, the events on February 5, 2014 were not beyond the employers control and, as such, the employer was required to provide 4 hours reporting pay to the affected employees.

The company denied this and held that reporting pay was not required as the snowstorm was clearly “beyond its control” and fell within the exemption in the collective agreement. They made arrangements to use a third party to clear the snow.

The parties have been down this road before and Arbitrator Stout considered these earlier awards. In one award, decided by Arbitrator Barton, he summarized the state of the law:

There have been a number of decisions which have dealt with clauses of this sort. To summarize the jurisprudence which is relevant here, an Employer is required to act reasonably. Some arbitrators interpret this to mean that the Employer cannot be negligent. The Employer is not required to take superhuman care to avoid a shut-down but reasonable care. It is required to anticipate what might normally occur and to take reasonable precautions to be sure that production can continue.

In that case, the arbitrator dismissed the grievance (involving a snow storm) concluding that the employer "took reasonable precautions to provide snow removal equipment but because of the timing of the storm, the wind direction, the additional freezing rain, its precautions were not enough.”

In a later National Steel Car case, decided by arbitrator Whitehead, the arbitrator allowed the grievance (involving a snow storm) because the precautions put in place to deal with the snow was sufficient, it’s just that there was a high level of absenteeism and, for that reason, the shift was cancelled. The link between the cancelled shift and the event that the employer argued was beyond its control was not direct.

Arbitrator Stout in the most recent National Steel Car case held that, in the circumstances, the event was beyond the control of the employer and “had a direct and substantial impact on the operation of the transfers and the plant generally.”

In dismissing the grievance, Arbitrator Stout concluded:

The Company had in place a protocol to address the removal of snow to ensure continued production. The storm became intense much later than expected and it is clear that the Company had issues keeping up with the snow accumulation. Management made a decision based on what they knew at the time and having due regard for the safety of their employees and plant. It would be unfair for me to second guess the decision of management in these circumstances. As said by Arbitrator Barton, the Company is not required to be superhuman, they only need to take reasonable precaution. In these circumstances, I am satisfied that they did in fact take such reasonable precaution, but were unable to keep up and insure the plant could run safely. [Emphasis added]

A more recent case to consider the issue (and the National Steel Car case) was Gentek Building Products Limited Partnership (2014) CanLII 77312 (ON LA). Arbitrator Goodfellow discussed the meaning of “beyond the control of the Company” and referred, with approval, to the following comment of Arbitrator Saltman in Robertshaw Controls of Canada Inc. (1989), 5 L.A.C. (4th) 124 (Saltman):

The term “beyond the control of the Company” is not defined in the collective agreement. However, it is generally understood that this term refers to circumstances which could not have been avoided with the exercise of reasonable care. This does not mean that the Company is expected to take every possible step to avoid even the most remote risk but only that it must anticipate those risks which are reasonably foreseeable and take steps to avoid them: see Re Sasco Tubes Ltd. and United Steelworkers, Local 8341 (1978), 15 L.A.C. (2d) 99 (A.M. Linden).

In discussing the circumstances of the case before him and the article in the collective agreement dealing with reporting pay, he stated:

The Company is not, by Article 32, placed in the position of an insurer of even four hours of employee work or wages against all perils but only against those the occurrence of which, with reasonable care and diligence, it could not have been prevented or avoided.

He held that the onus was on the company to establish that the exception to reporting pay applied (specifically “It must demonstrate that the reason for the lack of work was a condition beyond its reasonable control”.) On the facts of the case before him, the arbitrator concluded that the employer had failed to do so, he allowed the grievance and awarded compensation to the affected employees.

The Moral of this Story

These cases establish that the employer is not held to a standard of perfection in these matters, but to a standard of reasonableness. To repeat arbitrator Stouts’ words “the Company is not required to be superhuman, they only need to take reasonable precaution.” Safety is an important consideration, but it is not the only consideration. It is important that the employer not “panic” or engage in a “knee jerk” response to the situation.

That said, and subject to the particular language in the collective agreement, where the employer takes reasonable precautions or steps to deal with the matter, and these prove ineffective, then the employer will be well positioned to argue that the situation is beyond the control of the employer.

February 17, 2015

The Ontario Government today announced that it would follow through on its "commitment made in the 2014 Throne Speech" and launch public consultations on the changing nature of the modern workplace to commence. According to the News Release:

The consultation will be conducted under the auspices of special advisors “C. Michael Mitchell, formerly of Sack Goldblatt Mitchell LLP, and the Honourable John C. Murray, a former justice of the Ontario Superior Court and prominent management labour lawyer.”

The special advisors will:

…. provide guidance on the engagement process and solicit input from the public by participating in regional consultations, holding targeted stakeholder meetings and soliciting written submissions. They will also examine academic and inter-jurisdictional research on the changing workplace.

Following the consultation process, the special advisors will submit a report to the government with their recommendations.

January 15, 2014

Progressive discipline and performance management is part of the employment relationship. It’s a part that most managers and employees would like to avoid. But it’s reality and critically important to business and individual success.

This was a discharge case. The grievor, a yardman, was terminated as a result of a violation of the Company’s Code of Conduct. Specifically, the grievor was discharged for violating the employer’s personal protective equipment (“PPE”) policy. He had, on his record, a “Stage 2 discipline (written warning) for not following the Employer’s PPE policy, in particular not wearing a hard hat in areas of the plant that required him to have one on.” This was not grieved.

There was a requirement to wear a hard hat while driving the forklift. It seems that the policy “…. was ill considered and stupid in so far as it applied to him when he was driving the forklift.” and he voiced this concern. The arbitrator described the matter as follows:

What emerges is that, despite his performing well on the job, the grievor did not like wearing a hard hat, and once the new stricter policy was introduced, took it upon himself to resist the policy by refusing to comply when it suited him not to……

The grievor’s attitude at the time was aptly summed up in his own words. He concedes he was “upset, frustrated, pig-headed” and, as a consequence had decided to “push the boundaries on this”. In short, while he understood the company’s policy, he felt it appropriate to resist its application in his case in the hope it might change, or his non-cooperation might go unchallenged. However, in the end he learnt the truth of the old Russian proverb “Man who kicks the world hurts his foot”.

In the week leading to his termination, the grievor was seen “a couple of times on the same day without wearing his hard hat when told to do so”.

A meeting was convened between the union representative, the grievor and the Company’s HR representative. Following that meeting, the employer continued to believe that the grievor had not changed so far as the PPE was concerned. The Company terminated the grievor’s employment the following week (thus going from a written warning to termination).

The main issue in this case was whether “ the Employer was contractually obliged, by Article 31.02, to use progressive discipline in the form of a suspension before resorting to termination.” Article 31.01 and 31.02 provide as follows:

31.01 The parties recognize the importance of undertaking pro­gressive disciplinary action to address job-related behavior in the event that an employee is not meeting expected performance standards, with the objective of correcting behavior and improving employee performance.

31.02 The Employer will ensure that a progressive disciplinary action process is in place and applied consistently. This process includes a series of progressive corrective steps (based on the severity of the behavior or conduct in question) to address employee performance concerns or specific incidents. (emphasis in award)

The Arbitrator reviewed a number of cases and authorities dealing with progressive discipline and considered the Collective Agreement and concluded:

By Article 31.02, the Employer has committed itself to the use of a progressive discipline process. That process is well understood. The Employer has a policy that reflects customary practice. The “progressive” in progressive discipline does not simply mean well intentioned or enlightened, it means sequential, with (absent exceptional circumstances) escalating punishment imposed for corrective purposes. The Employer here chose, out of understandable frustration over the grievor’s challenging conduct and attitude, self-described as “stupid and pigheaded”, to skip the customary suspension that would usually follow a written warning and proceed straight to termination.

The concept of industrial discipline and the use of the suspension recognizes that employees can sometimes be stubborn and irrational, and sometimes they can fail to act on the warnings and guidance, however supportive and well intentioned, they receive. A suspension, particularly one of several days, is both real punishment and the clearest warning that the employee is close to termination. Sometimes conduct does not change until that point is reached. But once it is, they often do change. If they choose not to, then termination often follows.

The Arbitrator concluded that it could not be “reasonably said” that, on the facts of the case, “a suspension would have been pointless or ineffective.” Termination was “not the only viable option”. As such, a suspension was called for.

The union here negotiated a provision into the collective agreement that required the employer to consistently use progressive discipline and “moving straight to termination”, in this case, was a “breach of that commitment”. It seems that, even if the language was not in the collective agreement, the arbitrator would have found that the discharge was excessive based on a variety of mitigating factors.

Significance

I suppose the broad significance of this decision for employers is to highlight that they should understand that collective agreement language limits their ability to manage their business. Don’t just include language in the collective agreement blindly. Consider the significance of the language, the implications and how it will limit or restrict the ability of the employer to manage the business.

More directly, the case emphasizes the need to exercise patience when disciplining. On the facts of the case, it is clear that the employer was frustrated by the grievor’s intransigence and resistance to its directives.

As an employer, simply based on the facts reported in the case (including the “challenging conduct” described in the decision), would you have gone to termination, or would you have imposed a suspension?

The case involved the removal of an employee of GDI Services from a property of Oxford, one of GDI’s clients. The Union grieved and alleged that it is alleged that the circumstances of the removal constitute a violation of the Ontario Human Rights Code. One of the orders sought by the Union was against Oxford. The employer brought a preliminary motion arguing that the arbitrator was without jurisdiction to make any orders against Oxford. The arbitrator determined that Oxford could participate in the preliminary motion.

The arbitrator agreed with the employer (and the client) that she had no authority to make any remedial order against a non-party to the collective agreement.

The arbitrator reviewed the collective agreement and concluded that:

It is clear, when these provisions are read together, that the role of an arbitrator appointed under this collective agreement is limited to resolving the differences between the Employer and the Union, and that therefore they are the “parties” to the arbitration proceeding.

The arbitrator observed that she was not a consensual appointment, but rather an appointment under section 49 of the Labour Relations Act, 1995. This fact was not material as the section of the Act was designed to resolve “any difference between the parties to the collective agreement”. Once again, in this case, the parties to the collective agreement are the Employer and the Union.

Arbitrator Parmar held that:

The obvious and natural inference from that is that I have no authority to make any remedial orders in respect of a non-party. This principle was confirmed by Arbitrator Goodfellow, in Toronto (City) v. Toronto Civic Employees Union, Loc. 416, 2001 C.L.B. 13213

She suggests that a party may be added as a party to the arbitration with their consent. However, where the non-party does not consent to be added to the arbitration as a party, the arbitrator has no authority to do so and, of course, no jurisdiction to make any remedy against that non-party. In that regard, Arbitrator Parmar notes:

There is nothing in the LRA (leaving aside section 48(12)(j) for a moment) or the collective agreement which indicates or even suggests I have any authority to add parties to an arbitration proceeding without their consent. The Union has not referred me to any authoritative support for that proposition, statutory or otherwise. This is especially notable because the involvement of other entities in the factual matrix leading up to a grievance is not uncommon in labour relations. A few examples are health benefit insurers, pension plan administrators, and other unions. Despite this fact, I am unaware of and have not been alerted to a single instance of an entity being made a party to an arbitration proceeding without its consent.

The next issue was whether section 48(12)(j) of the Act which gives the arbitrator the power to “to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.” somehow changed the outcome. The arbitrator found that the outcome was the same since, even the Tribunal, did “not have any authority to make remedial orders against an entity that is not a party to its proceeding”.

Furthermore, the Act did not authorize the arbitrator to add a party to the arbitration proceeding. Although section 36 of the Code authorizes the Tribunal to add parties to proceedings before the Tribunal, section 48(12)(j) did not permit the arbitrator to do so. As the arbitrator put it “affirms arbitral authority to “interpret and apply” human rights legislation, procedural matters, like adding a party, are altogether a different matter.” and further:

In my view, if the legislature intended that section 48(12)(j) was to serve as a means to have section 36 replace section 48 and 49, and broaden arbitral jurisdiction beyond the labour relations parties, it would have clearly said so. In the absence of such, I find that section 48 and 49 continue to apply, and my jurisdiction is limited to addressing the dispute between the parties to the collective agreement.

The arbitrator held that she had no jurisdiction to make any remedial orders against a non-party to the collective agreement, where that non-party did not consent (as in the case before her) to be added as a party to the arbitration.

Significance For Employers

This decision seems, on its face, common sense and consistent with generally held labour relations principles. The case is of significance to employers whose employees work on client sites where the client bans the individual from attending on the premises for one reason or another. These cases are increasingly common in some sectors, and this case, among others, supports the limited scope of the arbitrator’s remedial jurisdiction.

The client had a national account with the employer and the
location at which the incident took place was a secure building, meaning that
visitors to each of the entrances, including delivery couriers, had to be
buzzed into the building and, once inside, having to be buzzed into the office
area.

The employee had 20 years service with the employer and was
not the regular courier for this client.
He appears to have become frustrated with the security which started
with a comment of “Why are you people giving me the f***ing run-around?” and
“this place is like Fort Knox.” After
leaving the building, and while still visible to the client’s employees through
a window, the grievor gave them “the middle finger”.

The employer’s District Manager conducted an
investigation. The arbitrator summarized
this aspect of the case as follows:

The grievor, according to [the employer’s witness], stated
that [the grievor] would “never admit” to doing what [had been] alleged. The
grievor would not admit to swearing and denied giving the middle finger. [The District Manager] did not believe him.
In particular, the grievor told [the District Manager] that, after exiting the
build­ing, he had waved to those inside, which, according to [the District
Manager], was certainly not normal practice for couri­ers. [the District
Manager] felt that the grievor simply “did not care”, and did not regard this
customer complaint as being in any way his problem. The grievor seemed to think
the complaint was “no big deal”. He was suspended that day, pending a decision
by the employer on his continued employment. After discussions with the Human
Resources Manager, [the District Manager] signed a letter of termination dated
December 10, 2008.

The grievor had been given a one-day suspension without pay
in May 2008 for having “acted in a threatening manner with inappropriate
language” during an altercation with management. This and the more recent incident were
violations of the employer’s Workplace Relation­ship Policy which the grievor
had received and had explained to him.
The District Manager was disturbed by the fact that, in his view, the
grievor seemed indifferent to what had taken place and was aggressive in the
meeting.

The arbitrator, following a review of the evidence,
concluded that the grievor had engaged in serious misconduct on December
4. He accepted the evidence of the
witnesses called by the employer (who were employees of the client) about what
happened on this day.

Notwithstanding the serious misconduct, the arbitrator
relied on the earlier case of Re Maritime Beverages Ltd. and U.F.C.W., Local
1288P 1992 CLB 11783 (Graser).
Specifically, he relied on the passage in that case where the arbitrator
found that the conduct there was a “brief episode of insolent and vulgar
language”.

In discussing the grievor’s lengthy service, the arbitrator
commented:

I am troubled by the union’s position that the grievor
should get credit for his 24 years of service even though Article 10.05
prevents me from knowing whether those were years of good and trou­ble-free
service. I think a strong argument can be made that a grievor cannot have it
both ways: he can scarcely rely on a sunset provision like Article 10.05 and,
at the same time, expect to get full credit for his long service.

In support he relied upon the comments made by Arbitrator
Surdykowski in Canadian Niagara Hotels Inc. v. Hotel Employees, Restaurant
Employees Union, Local 75 (Stock griev­ance), [2003] O.L.A.A. No. 174. However, this appears not to have been argued
and the arbitrator, therefore, did not discount the grievor’s lengthy service.

In reinstating the grievor, the arbitrator relied upon the
following:

A grievor with over 20 years of service to his credit;

A prior disciplinary record consisting of a one-day
suspension for having “acted in a threatening manner with inappropriate language”
during an altercation with management;

An isolated incident involving a brief episode of insolent
and vulgar language to a customer;

Damage to the employer’s interest in maintaining good
customer relations;

Absence of provocation; and

Absence of premeditation.

The arbitrator substituted an 8 week suspension without
pay. Accordingly, the employer was
required to pay the grievor for his losses (salary and benefits) resulting from
the discharge (less mitigation income).
The arbitrator added a condition to the reinstatement:

The reinstatement is conditional for a period of two years.
If, during this period, the grievor commits any act, worthy of discipline, of
abusive, vulgar or aggressive behaviour towards a customer (or a customer’s
employee) or towards a manager or supervisor, the reinstatement will come to an
end, and the discharge will be considered to have been upheld by this award;

Conclusion

This is a case that will no doubt be of concern to employers
whose customer relations, in increasingly competitive markets, are of paramount
importance. Employers work hard, and
spend tremendous amounts of resources, to secure and safeguard its customer
relationships. This appears to have been
discounted in the result of this case.

That being said an 8 week suspension is no an insignificant
penalty. However, where a national
account is put in harms way, one wonders whether the discipline is a proportional response to the harm done (or
potentially done) and whether this factor ought to have been given greater weight in the analysis?

October 30, 2013

The Divisional Court recently considered the proper parties to an application for judicial review of an arbitrator’s award dismissing a grievance involving the discharge of an employee.

In this case, the employee (grievor) brought the application for judicial review and the employer (who had been succesful at arbitration) brought a motion to quash the application on the basis that the employee lacked standing to bring the application.

In a collective bargaining regime, the individual rights of employees are given up in favour of the collective. The Court put it as follows:

Collective bargaining means exactly what the words say. The employees give up their individual rights to deal with their employer; they act together, collectively. For its part, the employer knows that it only has to deal with one party, the union, which is the exclusive representative of all its employees, the collective.

The parties to the collective agreement are the employer and the union. In most cases, the union, not the individual employee/grievor, has carriage of the grievance. The Court observed that subject to three exceptions, “as a general rule, the employee is without the right to individual standing in the grievance and without standing to bring any judicial review which may arise as a result of the grievance.”

1. The collective agreement may expressly provide that the grievor has standing to pursue a grievance, that the grievor has carriage of the grievance or has a right to independent representation.

2. When the right of the employee to the procedural protections of natural justice has been breached. The Court made some interesting observations on the content of procedural fairness:

(a) The grievor was aware of the arbitration and was given notice of it.

(b) The grievor was in attendance at the arbitration;

(c) The grievor testified;

(d) Evidence was presented on behalf of the grievor by the union;

(e) Submissions were made in support of the position;

(f) A decision was rendered with detailed reasons provided.

3. Where the grievor was unfairly or inadequately represented by the union. The apprehension of inadequate representation had to be reasonable.

The applicant (grievor) alleged that there was a breach of #2 and #3 because he was unable “to absorb and understand portions of the evidence because English is not his first language”. He said he should have been provided with an interpreter and that the failure to do so resulted in many errors by the union.

These suggestions were contrary to the evidence. The union proposed to the employer that an interpreter be provided at the hearing. The employer indicated that it would object to that request. Union counsel researched the matter and concluded that the grievor was not entitled to an interpreter.

At no time during the hearing was it suggested that the grievor had not been adequately represented. He should have, if he had concerns.

As the Court commented on the Union’s duty of fair representation and quoted from Gilinsky v. Carrier [2012] O.J. No. 4922:

If he wishes to complain that his union did not fairly represent him his proper course of action would have been an application before the Ontario Labour Relations Board. Section 74 of the Labour Relations Act provides.....

In the circumstances, the Court held that if the grievor had a complaint about the representation he received, that such a complaint out to be made to the Ontario Labour Relations Board under the Act.

March 21, 2013

Where do you go for a remedy? This is a question I get asked frequently by my students and clients. It is one that is sometimes difficult to answer, but with increased clarity, courts and administrative tribunals have carved out their turf and the rules that will be applied to determine whether they, or another body, hav jurisdiction to deal with the substance of the complaint.

The most recent case, is Cumming v. Peterborough Police Association, 2013 ONSC 1544 (CanLII) released on March 13, 2013. The Police Association brought an motion to dismiss the applicant’s claim on the basis that this court has no jurisdiction over the subject matter of the action.

The Court reviewed the statement of claim and concluded that the plaintiff “asserts, in essence, a breach of the Police Association’s Duty of Fair Representation”.

The Peterborough-Lakefield Community Police Services Board and the Association are parties to a collective agreement which applies to the plaintiff, and the Association is recognized as the “exclusive bargaining agent” for certain employees, including the plaintiff.

Following the Supreme Court of Canada decision in Weber v. Ontario Hydro, [1995] S.C.J. No. 59 (S.C.C.), the Court nicely summarized the questions it had to determine:

The question to be determined is whether the dispute in its “essential character” arises from the interpretation, application, administration or violation of the Collective Agreement and or the legislation the Collective Agreement incorporates as part of the Collective Agreement.

In order to determine the “essential character”, reference must be made to the wording set out in the pleadings, which in this case is the Statement of Claim.

If the “essential character” of the dispute arises explicitly or implicitly, from the interpretation, application, administration or violation of the Collective Agreement, the dispute is within the sole jurisdiction of an arbitrator to decide.

This analysis must proceed on the basis of the facts surrounding the dispute between the parties and not necessarily on the basis of the way the legal issues may be framed or pled. Whether an arbitrator can hear the dispute and grant the remedies as claimed by the plaintiff, the appropriate form is for the matter to proceed by way of arbitration.

Following an analysis, the Court concluded that “the damages and relief sought by the plaintiff relate to his allegation that the defendant Police Association did not fully discharge their duty to provide him with fair representation” and the exclusive jurisdiction rested with the arbitrator. The allegations “relate to his employment” where:

The essential character of the dispute ultimately concerns an interpretation, application, administration or alleged violation of the provisions of the Collective Agreement, and in particular the duty which [the plaintiff] claims was owed to him, to represent him in a proper and complete and fair manner.

The Court dismissed the action, in its entirety, on the basis that the Court lacked jurisdiction.

Courts will assume jurisdiction in limited circumstances where the issues arise out of the employment of a unionized employee. They have taken an expansive, though reasoned, approach to the “essential character” analysis and have dismissed a variety of claims brought by unionized employees. That is not to say that there are “no” claims over which the court will assume jurisdiction where a unionized employee is the plaintiff, just that there is a developed body of cases that discuss the approach they will take in deciding the jurisdictional issue.

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